The 80-year-old chief justice, William Rehnquist, who is suffering from thyroid cancer, is the one court-watchers are most closely eyeing, but there have also been hints in recent years that 75-year-old Sandra Day O'Connor (also a cancer survivor) may have had enough.
In a morbid display, each justice's health, age and inclination is being measured, monitored and probed by activists on both sides of the political spectrum. It's a deathwatch of Schiavo proportions.
Because of what is at stake, I'm right there with the best of them. I want a Supreme Court that will keep the government out of the bedroom and the bookstore, even when legislative majorities try to put it there, and will ensure a fair criminal process regardless of how heinous the offense. I want a court that will hold this nation to its principles, even when it is unpopular to do so. The Rehnquist court has barely done this competently.
But what is decidedly scarier than sticking with the team we have is considering the potential new players. Some of the guys that are reportedly being scouted by President Bush make Antonin Scalia look like a Deaniac.
Top on the list is J. Michael Luttig of the 4th U.S. Circuit Court of Appeals. He's only 51 years old - just old enough to have some gravitas but still young enough to offer a possible 30-year lock on the chief's seat.
Luttig has been called the most conservative judge on the most conservative federal appellate court. Unlike Justice Scalia, who sought to put some checks on Bush's use of the ''enemy combatant'' designation to hold Americans indefinitely and without charge, Luttig would be perfectly willing to grant the president virtually limitless detention authority.
In what appears to be a transparent bid for the job, Luttig licked Bush's boots in the 2003 case involving Yaser Esam Hamdi, the American who was held at the time as an enemy combatant. When the full 4th Circuit denied the administration a rehearing, Luttig wrote a separate dissent to trumpet how he wanted to hear the case and very likely would have sided with the president.
Luttig, a former law clerk for Scalia, has a judicial record of hostility to abortion rights, environmental protections and gays. He has a renowned animosity toward criminal defendants, which may stem in part from a terrible crime perpetrated on his family. In 1994, Luttig's father was murdered by two teenage carjackers. Luttig moved his chambers to Texas in order to lend assistance to the prosecution, and he demanded the death penalty. One of the defendants was later executed.
Another judge who appears to be a finalist is John Roberts Jr., who was appointed to the D.C. Circuit Court by Bush in 2003. He is 50 years old - that magic number - and has a minimal judicial record to review, considered a plus in a bruising confirmation battle.
His conservative stripes were earned mostly while serving in the Justice Department under Reagan and the first President Bush. While there, Roberts co-wrote briefs pushing the Supreme Court to overturn longstanding precedents on civil liberties.
In a case involving the constitutionality of a federal law barring doctors who receive federal funds from counseling their patients on abortion, Roberts went beyond the question presented in the case to argue for overruling Roe vs. Wade.
When the high court was considering the issue of prayer at public school graduations, Roberts urged the court in a friend-of-the-court brief to find those prayers constitutional and exhorted the court to loosen its test for keeping church and state separate.
Other names reportedly on the short list are Attorney General Alberto Gonzales, whose fingerprints on the administration's depraved former torture policy didn't disqualify him from the AG's post, so why not the Supreme Court; and Judge Samuel Alito of the 3rd Circuit, nicknamed ''Scalito'' because of his shared ideology with the associate justice.
There are a handful of others, but only Judge Michael McConnell of the 10th Circuit gives me hope. Here's a guy who once clerked for famed liberal jurists Skelly Wright and William Brennan. No, the Bush team has not lost its mind. McConnell's writings as a law professor at the University of Chicago and University of Utah indicate a rightward tilt. He holds the extreme view that the Constitution protects the unborn. Even so, McConnell is a brilliant constitutional scholar who has actively worked against Congress' efforts to outlaw flag burning. He also criticized the Supreme Court's actions in Bush vs. Gore, saying Florida should have been given time to do a recount, and he publicly opposed President Clinton's impeachment.
If Rehnquist finds the door, give me McConnell. Otherwise, give me a blindfold and earplugs. It will all be easier to take that way.
